Public defender says Marsy's Law complicates efforts to defend her client

MINOT, N.D.-It seems that the Ward County State's Attorney's Office interpretation of Marsy's Law has resulted in difficulty for lawyers trying to prepare a defense for their clients.Marsy's Law, passed by voters in November, is now part of the s...

Written By:
Andrea Johnson / Minot Daily News |
Feb 16th 2017 - 6pm.

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Robert Wefald of Bismarck, former North Dakota Attorney General and a retired judge, is chair for the "No on 3" committee opposing the Marsy's Law for North Dakota ballot measure. “This is simply bad constitutional law,” Wefald said Wednesday, Sept. 21, 2016, at a Capitol press conference announcing the “No on 3” committee. (Forum News Service photo by Mike Nowatzki)

MINOT, N.D.-It seems that the Ward County State's Attorney's Office interpretation of Marsy's Law has resulted in difficulty for lawyers trying to prepare a defense for their clients.

Marsy's Law, passed by voters in November, is now part of the state constitution and assures victim rights.

Raissa Carpenter, a public defender for accused robber and attempted murderer Javontez Barnes, told North Central District Court Judge Richard Hagar Thursday that the state's attorney's office claimed Marsy's Law is the reason it turned over documents in the Barnes case with the names and addresses of alleged victims heavily redacted. She said public defender offices across the state have been consulted and no other office has reported any changes in the discovery process or that state's attorney's offices have refused to identify victims in discovery documents. Carpenter said she needs to know the names of the victims and their addresses to begin preparing a defense.

Ward County Deputy State's Attorney Kelly Dillon told Hagar that her office wants guidance regarding the law. She said Marsy's Law is now part of the state constitution and the state's attorney's office is required to enforce it, even if they didn't support the law. Dillon told Hagar they want a court order compelling them to turn over the names of victims and addresses to the defense. Dillon said she also wants an order that defense attorneys cannot turn over physical copies of the discovery documents to defendants, as the state's attorney's office doesn't want those documents or victim names passed along among inmates at the Ward County Jail.

Carpenter said the state's proposal would produce "absurd and ludicrous results." There are so many documents in the case that it would take many more hours than practical for her to show the evidence to Barnes one document at a time in a meeting room at the jail. Carpenter said the state's redaction of victim names has already resulted in increased costs for the people of North Dakota because of the salaries of lawyers, the judge and sheriff's deputies who were required to attend the continued hearing on Wednesday. Carpenter also said Barnes has a right to physical copies of the documents while he is helping to prepare his defense.

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Dillon told the defense that certain victims have exercised their rights under Marsy's Law to have their identities protected. Carpenter said the state's attorney's office has not indicated which of the people involved have specifically invoked their rights under Marsy's Law. Carpenter said her understanding of Marsy's Law is that the names would have to be released upon an open records request by a general member of the public. Certainly, they must be released to parties in the case, like Barnes. Carpenter also told the judge that it isn't clear whether there are any actual victims in the case or that a crime has been committed until a judge has made a specific ruling that a crime or crimes took place.

Hagar told Eric Baumann of the public defender's office, who was there to provide advice to Carpenter, that he should schedule a meeting with Ward County State's Attorney Roza Larson to discuss her interpretation of Marsy's Law.

Hagar said he would take the information he received at Thursday's hearing under advisement and issue a ruling on Carpenter's motion to compel discovery at a later date.

Hagar also continued a planned preliminary hearing on the Barnes case to a later date.

Barnes, 24, is being held on $1 million bond in the Ward County Jail. He is accused of attempting to rob the Minot Cash Wise Grocery at gunpoint on Jan. 7 and later that day burglarizing a Minot residence, shooting and paralyzing a young man and pistol whipping and injuring a young woman at the residence. Barnes is also charged with four counts of reckless endangerment for allegedly shooting into an apartment in the 1800 block of 2nd Street SE on Jan. 4 while four people were present.

Randolph Garbutt, 26, is charged with robbery, burglary and accomplice to attempted murder case in the Jan. 7 incident and is also being held on $1 million bond.